Editorial: Let science, and courts, fix bone marrow shortage

To the chagrin of those in the Obama administration, the government lost a hard-fought legal effort to ban compensation for those giving bone marrow for transplant.

Instead of accepting a federal appeals court decision, the administration is now engaged in a cynical attempt to circumvent the ruling by changing organ transplant rules to cover new, less invasive ways of donating bone marrow.

It’s unacceptable, and the administration should drop the effort.

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The legal battle over bone marrow transplant compensation began in 2009 when the Institute for Justice in Washington, D.C., sued the attorney general over the claim that extracted marrow amounted to organs, and therefore was covered by the National Organ Transplant Act of 1984.

The law criminalized compensation for those giving organs for transplant, the thought being to prevent exploition of poor donors.

Bone marrow never really fit the ban since it is replenishable. And medical advances since then have vastly changed the landscape.

It used to be that doctors stuck a long, thick needle into a hip bone to extract the life-giving material. It was painful and risky. Now, they almost always filter marrow stem cells from a donor’s bloodstream.

A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously ruled in 2011 that the marrow cells taken from a donor’s bloodstream were blood parts, not organ parts, and donors could accept compensation.

The administration response has been to propose changing the definition of “human organ” to include marrow taken in the less invasive manner. In short, they’re trying to do an end run around the ruling.

And the net effect will be to limit potential donors when the opposite is what should be encouraged.

Generally speaking, critics of paying for organ donations worry that the rich would go to the front of the transplant line. But as we’ve noted before, a controlled compensation system — not a free-for-all — is worth pursuing because it will increase the number of organs available for transplant.

The same argument holds for bone marrow, though it’s even an easier call. Society has long been comfortable with paying for plasma donations.

The Obama administration should accept that science and the court system may have provided an answer to the problem of bone marrow shortages. It’s time for the administration to get out of the way of progress.